Joseph Nelson & Ors. v The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 ``` ## **`MACA NO. 1540 OF 2016`** ``` AGAINST THE AWARD DATED 25.04.2015 IN OP(MV) 415/2014 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM`** ## **`APPELLANTS/PETITIONERS:`** ``` 1JOSEPH NELSON AGED 55 YEARS S/O. P.P JOSEPH, AGED 55 YEARS, RESIDING AT PARIYATHUSSERY HOUSE, KOREYA ROAD, PACHALAM, ERNAKULAM KOCHI- 682012. 2ELSY GLADDIS AGED 50 YEARS W/O. JOSEPH NELSON, RESIDING AT PARIYATHUSSEY HOUSE, KOREYA ROAD, PACHALAM, ERNAKULAM KOCHI- 682012. 3MARY ATHMA JAIN AGED 20 YEARS D/O. JOSEPH NELSON, AGED 20 YEARS, RESIDING AT PARIYATHUSSERY HOUSE, KOREYA ROAD, PACHALAM, ERNAKULAM KOCHI- 682012. BY ADVS. A.R.NIMOD M.A.AUGUSTINE(K/000511/2005) P.C.JEEVA(K/000107/1981) ``` ## **`RESPONDENT/2ND RESPONDENT:`** ``` THE NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, OPP. MAHARAJAS COLLEGE GROUND, M.G. ROAD, KOCHI-11. ``` ``` BY ADV RAJAN P.KALIYATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1540 OF 2016 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants were the petitioners in O.P.(M.V.) No.415/2014 on the files of the Motor Accident Claims Tribunal, Ernakulam. The said claim petition was submitted by them seeking compensation for the death of the son of appellants 1 and 2 and the brother of the 3rd appellant, due to the injuries sustained in a motor accident that occurred on 29.09.2013. 2. The deceased was a pillion rider on the motorcycle ridden by the 1st respondent in the claim petition, and he sustained injuries when the said motorcycle hit the median of a road. He was taken to Medical Trust Hospital, Ernakulam, immediately after the accident, but he died on the next day while undergoing treatment. The deceased was working as a salesman in a shop with a monthly income of Rs.7,500/-. He was 21 years old at the time of his death. The claim petition was submitted in such circumstances. 3. The 2nd respondent in the claim petition/respondent herein, the insurer of the motorcycle, resisted the claim by filing a written statement wherein they admitted the coverage of the policy ``` MACA NO. 1540 OF 2016 ``` ``` 3 ``` but denied the liability. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A20 from the side of the appellants and no evidence was adduced by the respondents. After the trial, the Tribunal found that the accident occurred due to the rash and negligent driving of the 1st respondent in the claim petition and being the insurer, the 2nd respondent in the claim petition, the respondent herein, was held liable to pay the compensation. The quantum of compensation was fixed at Rs.11,41,000/-, and the said amount was directed to be deposited by the respondent herein with interest @ 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. 5. Heard Sri.A.R. Nimod, learned counsel for the appellants and Sri.Rajan P. Kaliyath, learned counsel appearing for the 2nd respondent in the claim petition/ respondent herein. 6. The only question that arises for consideration is whether any enhancement of compensation is necessary or not. ``` MACA NO. 1540 OF 2016 ``` ``` 4 ``` The learned counsel for the appellants highlighted several discrepancies in the award, such as lesser monthly income, the application of multiplier with reference to the age of the parents and omission in considering the future prospects etc. 7. Regarding the monthly income, even though the amount claimed was Rs.7,500/-, the Tribunal took the same as Rs.6,000/-, which appears to be on the lower side. To substantiate the monthly income, the appellant relied on Ext.A13, which is a certificate issued by the employer. The same was not accepted by the Tribunal on the ground that it was not properly proved. However, the amount mentioned in the said certificate was Rs.7,500/- and considering the fact that the accident occurred in the year 2013 under no circumstances, the said amount could be treated as unreasonable. It is to be noted in this regard that when monthly income is calculated on the basis of **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** the monthly income could be higher than the same. In such circumstances, I ``` MACA NO. 1540 OF 2016 ``` ``` 5 ``` do not find any justifiable reason to discard the same. Accordingly, the said monthly income is accepted for assessment of compensation. 8. The learned counsel for the respondent contended that the Tribunal made an addition towards 50% towards future prospects, and the deduction made was 1/3rd towards personal expenses. According to the learned counsel for the respondent, both the assessments were not in tune with the observations made by the honourable Supreme Court in **Sarla Verma & Ors. v. Delhi Transport Corporation [(2009) 6 SCC 121] and National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680].** The learned counsel for the appellants would point out in this regard that the Tribunal adopted a deduction of 1/3rd towards personal expenses after entering into a specific finding that the 1st and 2nd appellants, the parents of the deceased, alone were dependent upon them. 9. The learned counsel for the appellant contended that as no appeal has been filed by the respondent, the said questions need not be considered. However, I am not inclined to accept the ``` MACA NO. 1540 OF 2016 ``` ``` 6 ``` said contention because, in **Sarla Verma (supra),** the basic reason on which a deduction of 50% towards personal expenses was prescribed in the case of a bachelor was the fact that in the near future, the bachelor is likely to get married and in such event, the contribution of such person to the family is likely to be reduced substantially. The said situation will remain the same even if both the parents are dependent upon the appellant. Evidently, when he has a family of his own consisting of his wife and children, most of the expenses would be incurred by him for the maintenance of his own family. Therefore, 50% of the deduction towards personal expenses is more logical as far as a bachelor is concerned, particularly since what we are concerned with is loss of dependency in terms of money, which the parents would have received had he been alive. Therefore, I find it proper to adopt the deduction of 50% in this case. As mentioned above, I am not inclined to accept the contention raised by the learned counsel for the appellants to the effect that, as the Tribunal arrived at a specific finding as to the dependency of the parents upon the deceased, which is not under challenge in this appeal, it was not ``` MACA NO. 1540 OF 2016 ``` ``` 7 ``` open to consideration. Merely because, no challenge is raised against the said finding, that will not prevent the respondent in this appeal from raising a contention in this regard, as the quantum of compensation is being reworked. In this regard, the ultimate object of the judicial process is to determine the ‘just compensation’ to the victim, which cannot be a pittance and, at the same time, it cannot be a bonanza. Moreover, in this case, it is noted that, as of the date of the death of the deceased, the age of the father and mother were 53 and 48 years, respectively. There is no case for the appellants that they are incapable of maintaining themselves due to any illness or other reason. No such evidence has been adduced in this case also. If there is any evidence in that direction available, the argument raised by the learned counsel for the appellants could have been accepted. Since no such evidence is available, the 50% deduction appears to be proper. 10. While reassessing the compensation with the above revised criteria the amount under the head of loss of dependency comes to Rs.11,34,000/- [(7,500 + 40%0 x 12 x 18 x ½]. The ``` MACA NO. 1540 OF 2016 ``` ``` 8 ``` amount already awarded by the Tribunal under this head is Rs.9,36,000/- and the additional compensation comes to Rs.1,98,000/-. 11. The next head which requires consideration is loss of consortium. In the light of **Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram** [(2018) 18 SCC 130] and **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760] the appellants 1 and 2 are entitled for compensation for loss of consortium @ Rs.40,000/- each. Therefore, the total amount under this head is Rs.80,000/-. However, it is seen that the Tribunal has already awarded an amount of Rs.50,000/- towards loss of affection and service to the family. Since the compensation for loss of consortium would take in, the said head as held **Satinder Kaur** (supra), the said amount could be adjusted against the amount fixed by this Court towards loss of consortium. Therefore, the additional compensation for loss of consortium comes to Rs.30,000/-. 12. At this juncture, the learned counsel for the respondent points out that, the Tribunal awarded excess compensation under ``` MACA NO. 1540 OF 2016 ``` ``` 9 ``` the heads of loss of estate and funeral expenses as the amounts awarded was Rs.25,000/- each whereas, the proper amount in the light of **Pranay Sethi** (supra) was Rs.15,000/- each. Therefore, this contention has to be accepted in the light of **Pranay Sethi** (supra) and accordingly, the compensation in those heads are refixed as Rs.15,000/- each. Thus, additional compensation is determined as Rs.2,08,000/- [(1,98,000 + 30,000) –(10,000 + 10,000). In the result, this appeal is allowed. The award dated 25.04.2015 in O.P.(M.V.) No.415/2014 passed by the Motor Accident Claims Tribunal, Ernakulam is hereby modified by granting an additional compensation of Rs.2,08,000/- (Rupees two lakh and eight thousand only) which shall be deposited by the respondent with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. As the delay of 269 days in filing the appeal was condoned by this Court subject to the condition that the appellants shall not be entitled to claim interest for the said period, the respondent shall be entitled to exclude the ``` MACA NO. 1540 OF 2016 ``` ``` 10 ``` said period while computing the interest for the additional compensation. It is further clarified that the claimants shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs